Date: 20101022
Docket: IMM-1828-09
Citation: 2010 FC 1044
Ottawa, Ontario, October 22, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
SULEYMAN ALFAKA
ALHARAZIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
Docket: IMM-2689-09
AND
BETWEEN:
ABDUL WAHID ALHARAZIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Suleyman Alfaka Alharazim and Mr. Abdul Wahid Alharazim are citizens of Sierra Leone. They fled Sierra Leone with their
sister in February 2000 to escape the civil war that had plagued that country
during much of the prior decade. They then applied for permanent residence
under the convention refugees abroad class or the humanitarian protected
persons abroad class, pursuant to sections 138-151 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (IRPR).
[2]
In
February 2009, Immigration Officer A. Blouin rejected their applications for
permanent residence in separate, virtually identical, decisions made with
respect to each of the Applicants.
[3]
The
Applicants seek to have the decisions set aside on the basis that Officer Blouin
erred by:
i.
failing
to consider the compelling reasons exception in section 108(4) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA); and
ii.
failing
to provide them with an opportunity to address extrinsic evidence that
influenced her conclusion that they are inadmissible for complicity in crimes
against humanity, as contemplated by paragraph 35(1)(a) of the IRPA.
[4]
For
the reasons that follow, the Officer’s determination that the Applicants are
inadmissible for complicity in crimes against humanity is quashed. The balance
of these applications is dismissed.
I. Background
[5]
The
Applicants are brothers who were living in Freetown, Sierra
Leone
during the civil war that does not appear to have effectively ended until some
time after their departure. Suleyman claims that he was beaten by members of
the rebel forces. Both he and his brother also claim that some members of their
extended families were killed, that their home and properties were burned, and
that they witnessed their sister being raped. As a result, they fled with their
sister to Guinea in early 2000 and eventually made their way to Dakar, Senegal.
[6]
When
the Applicants arrived in Dakar, they submitted applications for permanent
residence as members of the convention refugees abroad class or as members of
the humanitarian and protected persons abroad class. After an interview in
August 2001, the Applicants’ sister was granted a visa and she came to Canada, where she
now lives. However, the Applicants were not granted visas because they had indicated
that from 1997 to 1999 they were active members of the Civil Defence Unit (CDU)
in Sierra
Leone.
Their applications were therefore sent for further review.
[7]
In November 2008, the Applicants attended another interview for the
purposes of determining the extent of their involvement in the CDU.
[8]
In
February 2009, their applications for permanent residence were denied.
II. The Decision
under Review
[9]
At
the outset of the decision, Officer Blouin noted that under section 147 of the
IRPR, foreign nationals are members of the country of asylum class if they are determined
to be in need of resettlement because (a) they are outside their countries of
nationality and habitual residence, and (b) they have been, and continue to be,
seriously and personally affected by civil war, armed conflict, or massive
violation of human rights in each of those countries.
[10]
Officer
Blouin then noted that under paragraph 139(1)(d) of the IRPR, a permanent
resident visa will only be issued to a foreign national in need of refugee
protection if it is established that the foreign national is a person in
respect of whom there is no reasonable prospect, within a reasonable period, of
a durable solution in a country other than Canada, namely, voluntary
repatriation or resettlement in their country of nationality or habitual
residence, resettlement in another country, or an offer of such resettlement.
[11]
Officer
Blouin stated that the Applicants did not meet this requirement because the
Lome Peace Accord had ended the civil war in 1999 and the United Nations High
Commissioner for Refugees (UNHCR) had developed repatriation programs that had
assisted hundreds of thousands of Sierra Leoneans to return to their country. Officer
Blouin also noted that the Applicants had not provided a valid reason for not
returning to Sierra
Leone,
except that they no longer had family there. Based on these findings, she
rejected the applications on the ground that they did not satisfy the
requirements in paragraph 139(1)(d) of the IRPR.
[12]
Officer
Blouin then went on to note that both Applicants had admitted that, between 1997
and 1999, they were active members of the CDU and had devoted themselves full
time to providing support functions to the Economic Community of West African
States Monitoring Group (ECOMOG), by identifying people they suspected of being
rebels. Officer Blouin added that the Applicants had confirmed during their
interviews that they knew that the individuals they had denounced would be
detained, brutalized and possibly killed without any form of fair trial. After briefly
noting that credible governmental and non-governmental organizations had
documented systematic human rights violations committed by the ECOMOG and their
collaborators, including the CDU, during the conflict in Sierra Leone, Officer Blouin
concluded that the Applicants were complicit in crimes against humanity and
were thus inadmissible under section 35(1)(a) of the IRPA. Accordingly, she
stated that she was also refusing the applications on that second ground.
III. Narrowing of
Issues
[13]
The
Respondent concedes that Officer Blouin erred by failing to provide the
Applicants with an opportunity to address extrinsic evidence.
[14]
However,
it is common ground between the parties that Officer Blouin’s conclusion with
respect to the Applicants’ inadmissibility under paragraph 35(1)(a) provided a
supplementary basis for rejecting their applications, such that her decision
will stand if she did not err in failing to address subsection 108(4) of the
IRPA.
[15]
Accordingly,
the parties agree that it is not necessary for me to address the error that was
made with respect to the extrinsic evidence. However, to eliminate the
potential adverse consequences to the Applicants that may flow from the
Officer’s determination that they are inadmissible under paragraph 35(1)(a),
the Respondent conceded that I should simply quash that determination in my
judgment below, which I will do. The remainder of these reasons for judgment
will therefore be confined to the issue that has been raised in respect of
subsection 108(4).
IV. Standard of
review
[16]
The issue of whether the Officer erred in
failing to assess whether the Applicants met the requirements in subsection
108(4) of the IRPA has been held to be reviewable on a standard of correctness (Decka
v. Canada (Minister of Citizenship and Immigration), 2005 FC 822, at para.
5).
[17]
Although I recently followed Decka on
this point (see Rivadeneyra v. Canada (Minister of Citizenship and Immigration), 2010 FC 845, at para. 20), on further reflection, I believe that this
issue is reviewable on a standard of reasonableness. In this case, nothing
turns on whether the standard of review is reasonableness or correctness, as I
am satisfied that the Officer’s failure to conduct an assessment under
subsection 108(4) withstands review on either the reasonableness or the
correctness standard.
[18]
In
March 2008, less than two weeks after the Supreme Court of Canada released its
decision in Dunsmuir
v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, Justice Dawson, who was then a member of this
Court, recognized that Dunsmuir had “opened the door” to the possibility that
reasonableness may be the proper standard of review on this issue (Musialek
v. Canada (Minister of Citizenship and Immigration), 2008 FC
403, at paras. 6-7). However,
in the absence of detailed submissions on that point from the parties in that
case, she left the issue open.
[19]
As
in Musialek, the parties in this case did not make detailed submissions
on this issue. However, given the frequency with which the issue of a failure
to consider subsection 108(4) is being raised before this Court, I believe that
it may be helpful for this Court to give greater guidance regarding the
applicable standard of review at this time.
[20]
In
Dunsmuir, above, at para. 54, the Supreme Court stated: “Deference will
usually result where a tribunal is interpreting its own statute or statutes
closely connected to its function, with which it will have particular
familiarity.” It then proceeded to state, at para. 55, that a consideration of
the following factors “will lead to the conclusion that the decision maker
should be given deference and a reasonableness test applied”: (i) whether the
statute in question contains a privative clause (i.e., a statutory direction
from Parliament indicating the need for deference), (ii) whether the
administrative regime in question is discrete and specialized, (iii) whether
the decision-maker has special expertise, and (iv) whether the question of law
is of “central importance to the legal system … and outside the … specialized
area of expertise” of the decision-maker.
[21]
In
Canada (Minister of Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 25, Justice Binnie, speaking for a
majority of the Supreme Court, elaborated upon this point as follows:
Dunsmuir recognized that with or without a privative clause, a measure of
deference has come to be accepted as appropriate where a particular decision had
been allocated to an administrative decision maker rather than to the courts.
This deference extended not only to facts and policy but to a tribunal’s
interpretation of its constitutive statute and related enactments because
‘there might be multiple valid interpretations of a statutory provision or
answers to a legal dispute and that courts ought not to interfere where the
tribunal’s decision is rationally supported’ (Dunsmuir, at para. 41).
[22]
Justice Binnie then proceeded to apply, in the context of
paragraph 67(1)(c) of the IRPA, the “contextualized analysis” described in Dunsmuir
and found that the appropriate standard of review to apply in connection
with the IAD’s approach to paragraph 67(1)(c) is reasonableness (Khosa,
above, at paras. 55 – 58).
[23]
In
my view, the application of the contextual analysis contemplated by Dunsmuir
to the case at bar yields a similar result. In short the following considerations
suggest that deference should be accorded to Immigration Officers with respect
to their interpretation of subsection 108(4) and when it applies:
i.
Such
officers exercise delegated authority from the Minister, their decisions with
respect to applications under the convention refugees abroad class and the
humanitarian protected persons abroad class are not subject to appeal, and
those decisions are only reviewable by this Court if leave is granted (Khosa,
above, at para. 55). The rights of appeal set forth in section 63 do not extend
to decisions in these types of matters. (With respect to decisions of the Refugee
Protection Division (RPD), the existence of section 162(1) of the IRPA suggests
that some level of deference would be owed in relation to this issue (Khosa,
above; Canada (Minister of Citizenship and Immigration) v. Pearce, 2006
FC 492, at para. 24).
ii.
In
making determinations with respect to applications for permanent residence
under the convention refugees abroad class and the humanitarian protected
persons abroad class under sections 138 – 151 of the IRPR, Immigration Officers
must develop and exercise considerable expertise in connection with often
difficult issues of fact, mixed fact and law, and “the imperatives and nuances
of the legislative regime” (Khosa, above, at paras. 25 and 56). (The
same is true with respect to the RPD in respect of its decisions.)
iii.
The
nature of the question of that has been raised in the case at bar is not of
“central importance to the legal system … and outside the … specialized area
of expertise” of an Immigration Officer. In contrast to constitutional
questions, true questions of jurisdiction, questions that are at the heart of
the administration of justice and questions regarding the jurisdictional lines
between two or more competing specialized tribunals (Dunsmuir, above, at
paras. 58-61), the question as to when an Immigration Officer (or the RPD) is
required to perform an assessment under section 108(4) is a narrow legal question
that arises solely under the highly specialized area of immigration and refugee
law. Indeed, the same is true with respect to the issue as to whether the “compelling
reasons” contemplated by subsection 108(4) exist in a given case. Moreover,
these legal questions “are clearly intertwined with the factual matrix in which
they arise” (Ramsawak v. Canada (Minister of
Citizenship and Immigration), 2009 FC 636, at para. 13). In addition,
unlike the proper interpretation of subsection 112(3) and section 113 of the
IRPA (Li v. Canada (Minister of
Citizenship and Immigration), 2010 FCA 75, at para. 20), these are not
questions that go to the heart of the legislative scheme. On the contrary, they
relate to a statutory provision that has application only in exceptional or
extraordinary circumstances.
[24]
It
does not appear that there are any considerations, as contemplated by Dunsmuir
and Khosa, above, which suggest that a standard of correctness should be
applied in reviewing this issue.
[25]
Accordingly,
I find that the appropriate standard of review to apply in connection with the
issue of whether the Officer erred in failing to conduct an assessment under
subsection 108(4) is reasonableness. However, nothing turns on this, as I have
determined that even on a correctness standard, the Officer did not err in this
regard.
V. Analysis
A.
Did the
Officer err by failing to consider the compelling reasons exception in section
108(4) of the IRPA?
[26]
The Applicants claim that their applications for permanent residence
were rejected on the basis of a change in circumstances since their departure
from Sierra
Leone.
In this context, they claim that the Officer had a duty to consider the
potential applicability of subsection 108(4), whether or not they had made any
explicit submissions in respect of that provision. I disagree.
[27]
The
Officer’s refusal to grant permanent resident visas to the Applicants was based
on her finding that the Applicants had not met one of the cumulative
requirements set forth in subsection 139(1) of the IRPR. Specifically, the
Officer found that the Applicants had not met the requirement in paragraph 139(1)(d),
which states:
139.
(1) A
permanent resident visa shall be issued to a foreign national in need of
refugee protection, and their accompanying family members, if following an
examination it is established that
[…]
(d)
the foreign national is a person in respect of whom there is no reasonable
prospect, within a reasonable period, of a durable solution in a country other
than Canada, namely
(i)
voluntary repatriation or resettlement in their country of nationality or
habitual residence, or
(ii)
resettlement or an offer of resettlement in another country;
[28]
The
Officer explained that the Applicants “do not meet these requirements, because
since the Lome Peace Accord that ended the civil war in 1999 and the
repatriation programs of UNHCR, hundreds of thousands Sierra Leoneans who had
fled during the conflict have returned to Sierra Leone.” The
Officer added: “You were unable to provide me with a valid reason for you to
not return to your home country, except that your family was no more in Sierra Leone.”
[29]
In
this context, it was not necessary for the Officer to consider the potential
applicability of subsection 108(4).
[30]
In
the first part of the decision, the Officer appears to have gone straight to an
assessment of whether the Applicants met the requirements of paragraph
139(1)(d), as she was entitled to do, without ever having reached any
conclusions as to whether the Applicants satisfied the requirements of
membership in the Convention Refugees Abroad Class or the
Humanitarian-Protected Persons Abroad class, as contemplated by paragraph
139(1)(e) of the IRPR.
[31]
This
approach is similar to the approach taken by the RPD in cases where there has
been a change in circumstances. In those cases, it is settled law that the RPD
is entitled to proceed directly to a forward-looking assessment of whether the
applicant for refugee protection has a well-founded fear of future persecution,
without first making a determination of whether a person has suffered past
persecution and, if so, whether subsection 108(4) applies. (Hassan v. Canada
(Minister of Employment and Immigration), [1992] F.C.J. No. 946 (C.A.); Yusef
v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 35,
at para. 2 (C.A.); Brown v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 988, at para. 7 (T.D.); Corrales v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1283, at paras. 6-7 (T.D.);
Kudar v. Canada (Minister of Citizenship and
Immigration), 2004 FC 648, at para. 10; Brovina v.
Canada (Minister of Citizenship and Immigration), 2004 FC 635, at paras.
6-9; Decka, above, at paras.
15-16; Thiaw v. Canada (Minister of Citizenship and Immigration), 2006
FC 965, at para. 24; and Cardenas v. Canada (Minister of Citizenship and
Immigration), 2010 FC 537, at para. 37).
[32]
The
facts in the case at bar are similar in many respects to those in Kamara v. Canada (Minister of
Citizenship and Immigration), 2008 FC 785. There, the principal Applicant
and her children fled Sierra Leone in 1999 and applied for
permanent residence as members of the convention refugees abroad class or the
humanitarian-protected persons abroad class. Among other things, the visa
officer concluded that the applicants could repatriate to Seirra Leone, without
a well-founded fear of persecution, because the circumstances that led to their
departure had ceased to exist. Therefore, one of the grounds upon which the
officer rejected the Applicants’ application was that the requirements of
paragraph 139(1)(d) had not been met. In response to the Applicants’ claim that
the officer should have considered whether there were any “compelling reasons,”
as contemplated by subsection 108(4) of the IRPA, for granting their application,
the Court concluded (at para. 19) that “the threshold for applying subsection
108(4) has not been met”, as the visa officer had made no positive finding of
past persecution.
[33]
The
Applicants submit that Kamara, above, is distinguishable on the basis
that there was an affirmative finding that the applicant had not suffered past
persecution. I disagree that this is a basis for distinguishing that case. In Kamara,
the applicant’s submission with respect to subsection 108(4) was a separate and
distinct error alleged to have been committed by the RPD. The Court’s
rejection of that submission had nothing to do with its findings in respect of
the other alleged errors.
[34]
The
Applicants further submit that Kudar, above, is distinguishable on the
basis that the RPD found that police protection was available to the applicant
and that he was not a refugee at any time. I do not read anything in that case
as suggesting that the Court did not intend to embrace, as a general principle,
that “in cases where there is no finding that at one time the applicant was a
Convention refugee (or a person in need of protection), the cessation
protection does not come into play and consequently, the exception allowing
compelling reasons arising out of past persecution cannot be triggered” (Kudar,
above, at para. 10).
[35]
In
any event, Hassan, above, and Decka, above, are squarely on
point, as it does not appear that any finding was ever made in those cases that
the applicant had not suffered past persecution.
[36]
The
Applicants further submit in Yamba v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 457, at para. 4 (C.A.),
the Federal Court of Appeal held that the RPD is under an obligation to
consider the applicability of what is now subsection 108(4) once it is satisfied
that refugee status cannot be claimed because of a change in country
conditions. However, what the Applicants fail to point out, and as was noted by
Justice Mosely in Decka, above, the Court of Appeal in Yamba went
on to clarify that this obligation only arises once the RPD “concludes that a
claimant has suffered past persecution” (Yamba, above, at para. 6). As
reflected in the cases cited at paragraph 31 above, this requirement that an
explicit or implicit finding of past persecution by the relevant decision-maker
is a precondition to the potential application of subsection 108(4) has been
consistently affirmed.
[37]
The
Applicants then submit that there was an actual positive determination that the
applicants were refugees and that, but for the changed country conditions, they
would still be refugees. In support of this submission, they assert that their
applications for permanent residence were approved in principle, subject to
medical and security checks. They state that this assertion is supported by the
notation in the Computer Assisted Immigration Processing System (CAIPS) notes,
which states “will come on Friday to collect meds and sign IMM 500***meds
collected on 2-2-2001***Loan form no”.
[38]
The
Applicants state that IMM 500 refers to the form for an immigration travel
loan, and that section 3.1 of Citizenship and Immigration Canada’s Operational
Manual OP5, entitled Overseas Selection and Processing of Convention
Refugees Abroad Class and Members of the Humanitarian-protected Persons Abroad
Classes (“OP5”), states that the purpose of such loans is “[t]o authorize
transportation loans, right of permanent residence loan and loan for medical
examination and related costs.” The Applicants add that “Meds” refers to
medical assessments, and that section 23.8 of OP5 states that “[t]he medical
assessments will be initiated and coordinated by the visa office immediately
following a positive decision to process the application.” The Applicants infer
from this that a positive decision must have been made to process their
applications, and that there must have been positive determination, at least on
an interim basis, that they were refugees, and therefore victims of
persecution, at some time in the past.
[39]
I
disagree, for two reasons. First, the fact that a positive decision may have
been made to process the Applicants’ applications does not mean that a
positive decision had been made to approve those applications. The
processing of applications requires multiple steps and does not result in an
approval or rejection until all of those steps have been completed. Second, as
the Federal Court of Appeal confirmed in Dass v. Canada (Minister of
Employment and Immigration), [1996] 2 F.C. 410, at para. 23, “a decision is
taken to have been made when notice of that decision is given to the parties
affected with some measure of formality. Judicial review cannot be sought of
decisions until they have been formulated and communicated to the parties
affected.”
[40]
The
Applicants further assert that one of the responses provided by Officer Blouin
on cross-examination reflect that she did consider the potential application of
subsection 108(4). They maintain that it was a breach of procedural fairness
for the Officer to have failed to provide notice that she was considering this
provision. The relevant excerpt from the transcript of Officer Blouin’s cross-examination
is the following:
20 Q Okay. And in this case, did you consider whether there were
compelling reasons?
A I wasn’t, I was, I had read the application. Okay. And the declaration
in which they claim that they were victim [sic] of abuses, and discrimination,
and violent behavior. And they, one of the brother [sic] mentioned that also at
the interview. But I did not consider that this was sufficient, you know to, to
how can I say, to consider them as refugee [sic]. Even though, you know, while
the circumstances have changed, this was one fact, but I did not consider that
what they had suffered make them, impossible for them to return to their home
country.
[41]
I
am unable to agree that the passage in question reflects that the Officer
considered subsection 108(4). In my view, the above passage suggests that she
was directing her mind to paragraph 139(1)(d) of the IRPR, the provision upon
which she based her decision to reject the applications, rather than to
subsection 108(4) of the IRPA. After reviewing the transcript as a whole, I am
not persuaded that the Officer considered, let alone reached a decision with
respect to, subsection 108(4). In any event, even if the Officer gave initial
consideration to whether this might be a case in which subsection 108(4) should
be considered, I do not believe that the Officer erred by failing to give
notice to the Applicants on this issue, because that “it is for the claimant to
establish under subsection [108(4)] that there are compelling reasons not to be
returned” (Brown, above, at para. 7).
[42]
Finally,
the Applicants submitted in oral argument that the nature of the past
persecution that they suffered was such that the Officer’s failure to consider
the potential application of subsection 108(4) amounted to a reviewable error.
In support of this position, they referred to Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425, at para. 17,
where Justice Evans stated “the more important the evidence that is not
mentioned specifically and analyzed in the agency’s reasons, the more willing a
court may be to infer from the silence that the agency made an erroneous
finding of fact ‘without regard to the evidence’.”
[43]
I
do not agree that Cepeda-Gutierrez stands for the proposition that, in
some cases, the nature of the past persecution alleged to have been suffered by
an applicant for refugee protection may rise to the level that it imposes an
obligation on the RPD or an Immigration Officer to consider the potential
applicability of subsection 108(4). The above-quoted passage from that case, as
well as the balance of paragraph 17 of that judgment, makes it clear that
Justice Evans intended his statement to apply to findings of fact.
[44]
That
said, given the underlying spirit of subsection 108(4), I agree with the
Applicants that there may be some situations in which the nature of past
persecution is so severe that it would be contrary to that spirit and a
reviewable error for anyone reviewing an application for refugee protection in
such situations to fail to consider the potential applicability of that
provision, notwithstanding the settled law that the focus of the assessment to
be made under sections 96 and 97 of the IRPA is forward-looking in nature.
[45]
As
recognized in Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2
F.C. 739, at 747-748 (C.A.), the inspiration for what is now subsection 108(4)
is found in Article 1 C (5) of the 1951 United Nations Convention Relating
to the Status of Refugees (the “Refugee Convention”). Article 1 C (5)
states:
C. This Convention shall cease to apply to any person falling
under the terms of section A if:
….
(5)
He can no
longer, because of the circumstances in connection with which he has been
recognized as a refugee have ceased to exist, continue to refuse to avail
himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling
under section A(1) of this article who is able to invoke compelling reasons
arising out of previous persecution for refusing to avail himself of the
protection of the country of nationality.
[46]
With
respect to the
second paragraph of Article 1 C (5), the UN Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees (the “Handbook”) states:
136.
The
second paragraph of this clause contains an exception to the cessation
provision contained in the first paragraph. It deals with the special situation
where a person may have been subjected to very serious persecution in the past
and will not therefore cease to be a refugee, even if fundamental changes have
occurred in his country of origin. The reference to Article 1 A (1) indicates
that the exception applies to “statutory refugees”. At the time when the 1951
convention was elaborated, these formed the majority of refugees. The
exception, however, reflects a more general humanitarian principle, which could
also be applied to refugees other than statutory refugees. It is frequently
recognized that a person who – or whose family – has suffered under atrocious
forms of persecution should not be expected to repatriate. Even though there
may have been a change of regime in his country, this may not always produce a
complete change in the attitude of the population, nor, in view of his past
experiences, in the mind of the refugee.
[47]
In
discussing what is now subsection 108(4), the Federal
Court of Appeal in Canada (Minister of Employment and Immigration) v. Obstoj,
[1992] 2 F.C. 739, at 747-748 (C.A.) adopted a similar view, when it interpreted
that provision as “requiring Canadian authorities to give
recognition of refugee status on humanitarian grounds to this special and
limited category of persons, i.e. those who have suffered such appalling
persecution that their experience alone is a compelling reason not to return
them, even though they may no longer have any reason to fear further
persecution.” The Court then proceeded to observe: “The exceptional
circumstances envisaged by subsection [108(4)] must surely apply to only a tiny
minority of present day claimants.”
[48]
A
similar view of the exceptional nature of subsection 108(4) was adopted in Brown,
above, at para. 4; Brovina, above, at para. 5; Shahid v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 251, at para. 25; and Hassan
v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 630, at para. 11, where
Justice Rothstein expressly adopted the view expressed in Obstoj, and then
added:
While many refugee claimants might consider the persecution they
have suffered to fit within the scope of subsection [108(4)], it must be
remembered that the nature of all persecution, by definition, involves, death,
physical harm or other penalties. Subsection [108(4)] as it has been
interpreted, only applies to extraordinary cases in which the persecution is
relatively so exceptional, that even in the wake of changed circumstances, it
would be wrong to return refugee claimants.
[49]
Having
regard to the foregoing, I am satisfied that the class of situations in respect
of which it may be a reviewable error for decision-maker under the IRPA to fail
to consider the potential applicability of subsection 108(4) ought to be narrowly
circumscribed, to ensure that it only includes truly exceptional or
extraordinary situations. These will be situations in which there is prima
facie evidence of past persecution that is so exceptional in its severity
as to rise to the level of “appalling” or “atrocious.”
[50]
I
am mindful of the decisions in Elemah v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 779, at para. 28, and Suleiman
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1125, at paras. 16 - 21, which
state that subsection 108(4) does not require a determination that the severity
of the claimed past persecution rose to the level of being “atrocious” or
“appalling,” before a positive finding may be made under that subsection. Those
cases both dealt with situations in which the RPD conducted assessments under
subsection 108(4) or its predecessor.
[51]
I
acknowledge that there may be situations in which it may be possible to meet
the requirements of subsection 108(4), without the need to demonstrate past
persecution that rises to the level of having been “atrocious” or “appalling.”
In keeping with the settled jurisprudence established in Obstoj, above,
and its progeny discussed above, those situations must be truly exceptional or
extraordinary, relative to other cases in which refugee protection has been
granted.
[52]
However,
for the purposes of determining when it may be a reviewable error for a member
of the RPD, an Immigration Officer or another decision-maker under the IRPA to fail
to conduct an assessment under subsection 108(4), it is appropriate to
define a narrow category of situations in respect of which such an assessment
is required.
[53]
Keeping
in mind the insights provided by paragraph 136 of the UN Handbook and the
difficulty that would be associated with attempting to identify, ex ante,
exceptional situations that do not involve severe past persecution, it is
appropriate to confine that category of situations to those that in which there
is prima facie evidence of “appalling” or “atrocious” past persecution.
In those cases, a decision-maker under the IRPA is required to perform an
assessment under subsection 108(4) of the IRPA. In all other cases, a
decision-maker may exercise discretion as to whether to perform such an
assessment.
[54]
Unfortunately
for the Applicants in this case, the prima facie evidence regarding the
past persecution that they claim to have suffered did not rise to the level
described in the previous paragraph. While the evidence was disturbing and
involved events that were no doubt very traumatic to the Applicants and their
relatives, the persecution in question was not exceptional or extraordinary, relative
to the range of other cases that come before this court, and it did not rise to
the level of being “appalling” or “atrocious”. Therefore, I am unable to
conclude, on either a reasonableness or a correctness standard of review, that the
Officer erred in failing to conduct an assessment under subsection 108(4).
VI. Conclusion
[55]
The
applications for judicial review are dismissed.
[56]
The
Applicants proposed two questions for certification. The first question
involved situations in which a tribunal acting under the authority of the IRPA
has made an interim finding that a claimant is a refugee, there is evidence of
past persecution, and the reasons for which the person sought refugee
protection have ceased to exist. The question was whether the tribunal in
question must perform an assessment under subsection 108(4) in such situations.
I am not prepared to certify this question, particularly given (i) the factual
difficulties that would be associated with determining, in any given case,
whether such an interim finding has been made, (ii) decision-makers do not
typically make interim findings, and (iii) such findings do not have any legal
status.
[57]
The
second question was whether the assessment contemplated by subsection 108(4)
must be made as part of the assessment of whether an applicant is a Convention
refugee. That is essentially the question that was proposed for certification
in Decka, above, and rejected by Justice Mosley on the basis that the
question had been resolved by the decision in Yamba, above. I agree and
do not believe that the decision in Decka is inconsistent with the
decision in Yamba.
[58]
Accordingly,
there is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUGES THAT the parts of the decisions of Officer Blouin,
dated February 9, 2009, in which she found that the Applicants were complicit
in crimes against humanity committed by both the Civil Defense Unit in Sierra
Leone and by the Economic Community of West African States Monitoring Group are
quashed; and that the balance of these applications for judicial review is
dismissed.
“Paul
S. Crampton”
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